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Muhammad Faruk Vs. NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All277
AppellantMuhammad Faruk
RespondentNaraIn Singh
Excerpt:
act xxiii of 1861, section 14 - pattidari estate--pre-emption--act xviii of 1873, section 177--act xix of 1873, section 188. - - but the plaint distinctly stated that the sale took place in the execution of a decree of a revenue court, and the munsif made it an issue whether the plaintiff had any right of pre-emption in such a case......be sold, the sale shall be made under the rules in force for the sale of land for arrears of land revenue. the only reference to pre-emption in act xix of 1873 is to be found in section 188. it is contended that, as the sale is concluded before the claim to pre-emption can be made, the claim itself is not made under any rules for the conduct of sales. we should, however, be disposed to disallow this contention. it is not, however, necessary on the present occasion to determine the point. section 188 provides that, when any land sold under section 166 is a patti of a mahal, any recorded co-sharer, not being himself in arrear with regard to such land, may, if the lot has been knocked down to a stranger, claim to take the said land at the sum last bid. from this section, and section.....
Judgment:

1. The suit was instituted under Section 14, Act XXIII of 1861, but that section cannot apply to sales in execution of decrees by Revenue Officers. The Act is supplementary to and amends Act VIII of 1859, which is purely a Code of Civil Procedure. The Rent Act X of 1859 provided for the execution of decrees under the Act by Courts presided over by Revenue officers, and Act XIV of 1863, under which the suit was brought and decreed, and the property now in suit was sold in execution on the 20th August 1874, is by Section 18 declared to be a part of Act X of 1859. Hence it is quite clear that Section 14, Act XXIII of 1861, would not apply to the present suit, and no claim to pre-emption would be asserted under it. Since the decree under Act XIV of 1863, Act X of 1859 has been repealed, and if the present Rent Act admits of the assertion of a pre-emptive title in cases of sale in execution of decrees, the suit should have been founded on some section in that Act. The Munsif possibly might have thrown out the suit as based on Section 14, Act XXIII of 1861, which did not apply; but the plaint distinctly stated that the sale took place in the execution of a decree of a Revenue Court, and the Munsif made it an issue whether the plaintiff had any right of pre-emption in such a case. In making this issue we think that the first Court was right, as the nature of the claim was apparent, and the defendant would not be prejudiced on the merits of the case, if it would be successfully urged; and on the other hand if the Rent Act provided no means of asserting a pre-emptive title in sales in execution of decrees the defendant had a complete answer to the suit. The lower appellate Court's judgment opens with the remark that the plaintiff brought his suit under the Muhammadan law in respect of pre-emption. But this is not so; no such claim was asserted. The suit rests upon some assumed right as a co-sharer to claim at a sale in execution of a decree by a Revenue Court to purchase the property sold at the price it was knocked down to the last bidder, and the plaintiff' asserts that he made the claim at the time of sale, and fulfilled all the conditions of the sale, hut his claim was disallowed. It was contended that Section 177, Act XVIII of 1873, and Section 188, Act XIX of 1873, applied to the case. Section 177 of the former Act gives power to the Board of Revenue to order the sale of immoveable property under certain conditions, and if the property be sold, the sale shall be made under the rules in force for the sale of land for arrears of land revenue. The only reference to pre-emption in Act XIX of 1873 is to be found in Section 188. It is contended that, as the sale is concluded before the claim to pre-emption can be made, the claim itself is not made under any rules for the conduct of sales. We should, however, be disposed to disallow this contention. It is not, however, necessary on the present occasion to determine the point. Section 188 provides that, when any land sold under Section 166 is a patti of a mahal, any recorded co-sharer, not being himself in arrear with regard to such land, may, if the lot has been knocked down to a stranger, claim to take the said land at the sum last bid. From this section, and Section 166, it is clear that the land must be a patti of a mahal and not a portion of a patti; and this contention of the appellant's pleaders appears to us to dispose of the suit in which the land claimed is only a portion of a patti. We, therefore, think that this suit founded on the alleged right to claim as a pre-emptor in a sale in execution of a decree of a Revenue Court, under rules for the conduct of such sales, fails, and was properly dismissed by the first Court. We, therefore, decree the appeal, and reverse the decision of the lower appellate Court, restoring the decree of the Munsif with costs.


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